A good part of the reason I started blogging was because I went to a history conference at a UT branch up between Dallas and Fort Worth and found that, contrary to belief, many well known academic historians have found community history projects to be invaluable because of their focus and details. Photos rated high. Photos with details rate high. Interviews with participants in events rated high. Interviews with older people rated high if you cover their experience and perspective.
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“Protest works. Just look at the proof”


The last place you will hear about the new American labor movement is in big American outlets.

Via lambert, via susie. See them, their blogrolls, Twitter hash tag #1u and just about any other outlet where citizens can get the word out.

The Coalition of Immokalee Workers (CIW)

The CIW is a community-based organization of mainly Latino, Mayan Indian and Haitian immigrants working in low-wage jobs throughout the state of Florida. Via.


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The OLC Does Not Have a Head. Does It Need a Body?

No Associated Press content was harmed in the writing of this post

According to its web site, the Office of Legal Counsel (OLC) “provides authoritative legal advice to the President and all the Executive Branch agencies.” Its home page gives a brief, readable description of its functions, which basically center around guiding the executive branch and its agencies in all things legal. Its opinions are considered binding within those spheres, though that has never been established by the courts.

It has been described as the president’s law firm, and its recent work in that expansive capacity has been of questionable value. Here is Jane Mayer’s take on it as we lurched into the War on Terror:

The Bush Administration’s corruption of language had a curiously corrupting impact on the public debate, as well. It was all but impossible to have a national conversation about torture if top administration officials denied they were engaged in it. Without access to the details of the CIA’s secret program, neither Congress nor the public had the means to argue otherwise. The Bush Administration could have openly asked Congress for greater authority, or engaged the public in a discussion of the morality and efficacy of “enhanced” interrogations, but instead it chose a path of tricky legalisms adopted in classified memos.

Those memos and legalism came from the OLC. Here is how Scott Horton described the outlook of then-Attorney General Michael Mukasey and former OLC head Jack Goldsmith:

The view taken by Mukasey and Goldsmith is that OLC memos are cloaked with a sort of talismanic significance. It doesn’t matter how stupid or incompetent they are, or that they have turned the OLC into an international butt of ridicule. Government officials are entitled to rely on them absolutely, and they cannot be prosecuted to the extent that they do.

Taken together, these points justify getting rid of the OLC entirely. Its most visible work in recent years has been to provide the framework for the culture of impunity that has poisoned the White House. Its memos are called “golden shields” precisely because the issuing of them has come to be seen as unconditional justification for the activities they cover. The memos are infallible in all but name, a characteristic more associated with religion than civil government for good reason. The idea that OLC lawyers’ work carries complete authority is odious. They might do fabulous work outside of public view but it would take an awful lot of great lawyering to offset that.

President Obama has a curious relationship with the office as well. He nominated Dawn Johnsen to head the office, allowed her to languish for almost a year, then let her nomination die a quiet death. Now there are rumors she will be re-nominated this year. The OLC is in something like a zombie state at the moment, working on a semi-permanent basis without leadership.

If the White House is content to let it cruise along on auto pilot indefinitely, what value does it have? Couldn’t an enterprising law student crank out the legal boilerplate required for executive orders? Or is the president content to let it hibernate, only rousing it if he needs prospective immunity for some dubious enterprise? In a way, his willingness to let is shamble along in this state is even more cynical than his predecessor’s wrenching of if to his dark purposes.

Presidents need legal advice, and they already have it in the form of the Office of the White House Counsel (OWHC). (Lest you think I am being radical, Bruce Ackerman thinks we should get rid of that office as well as the OLC.) Let the OWHC take on the functions of the OLC, only without the omniscience. If an agency like the EPA needs a clarification on something, let it retain counsel or consult its in-house lawyers if it has them. Transferring control of agencies from the executive to the legislative branch might be worth considering too, but that’s another post.

Having groups (the OLC) provide advice to entities (the executive branch) obscures, probably by design, lines of authority and responsibility. The White House doesn’t need legal representation; the White House is a building. It is fine to informally refer that way to the president, or the president’s policies, in news reporting and commentary. As a legal matter, though, it is an absurdity - and asking people to refrain from such shorthand is more than a semantic game or pedantry. It goes directly to our intuitive understanding of how our government works. Individual leaders make decisions, individual lawyers provide counsel. There may be teams of people working on policy or vetting proposed language, but there is ultimately one person signing off. The OLC by its very nature helps to cloud those distinctions. For that reason alone it is worth doing a cost/benefit analysis on it.

Reader Comments (4)

My first reaction is that reform of the OLC versus elimination is the answer, but given the function of the Office of the White House Counsel and the extraordinary abuses perpetrated by the OLC under Bush/Cheney, the case for elimination grows stronger. The CIA, DOD and every other agency and branch have their own legal counsels, anyway, and in theory, they're supposed to talk to each other when relevant. Yoo's ridiculous opinions might be far more exposed in some other departments. I note, though, that Ackerman wants the Office of White House Counsel axed as well, and writes that Obama "should transform the Office of Legal Counsel into a courtlike institution that will make every effort to interpret the law in an impartial fashion." I think we all agree on the general problems, and that there need to be structural mechanisms to curtail abuses, but the precise set-up is less clear. Do a cost/benefit analysis on it all, as you say.

January 8, 2010 | Unregistered CommenterBatocchio

Thanks for the thoughts, Batocchio. I mentioned transferring control of agencies from the executive to the legislative as an aside, but it could be seen as a central issue. The need for even a reformed OLC to have panels of lawyers is in part a function of the vast authority of the executive. Moving as many things as possible into the branch responsible for creating them in the first place might reduce the need for a team of lawyers in the White House.

January 8, 2010 | Registered CommenterDan

I don't think OLC should be axed primarily because it was misused by a single corrupt administration. Instead, I'd like to see, um... remember "transparency"? Well, a nice transparent review of the entire DOJ and full clarity about its functions would be nice. A really solid, active judiciary committee would be nice too.

Keep in mind that, like it or not, lawyers are there to find loopholes as much as anything. Like anything else, OLC's function depends on intention and about being subject to truly impartial oversight. I'd be a little worried about making any big changes at a time when things are so partisan as to make effective oversight impossible.

January 8, 2010 | Unregistered CommenterPW

Words of caution noted, PW. :)

The overriding concern for me is having too many layers, too many places for the system to be perverted. Getting rid of the OLC would mean (I think) straighter lines of responsibility.

I've somewhat soured on oversight in the last few years. Regulations can go unenforced for ideological reasons, agencies can be starved of the resources needed, etc. More and more I think we need to find solutions that don't depend on vigilance, but instead on transparency and a presumption of accountability. Or something like that.

January 8, 2010 | Registered CommenterDan

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